WASHINGTON — The proper response for elected officials censured by their colleagues for their public criticism is not to sue but to keep criticizing, the Supreme Court decided Thursday.
The court unanimously threw out a lawsuit by a member of a community college board in Texas who said the formal reprimand he received from his colleagues was the kind of retaliatory action by a government body that the First Amendment forbids.
But Justice Neil Gorsuch, writing for himself and his eight colleagues, said members of Houston Community College’s Board of Trustees were within their rights to censure member David Wilson, just as he had the right to criticize their past actions.
“In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers — and to continue exercising their free speech rights when the criticism comes,” Gorsuch wrote.
He added: “The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same.”
Wilson was more than just a vocal critic of his colleagues; he regularly accused fellow board members of corruption and, at one point, hired a private investigator to determine whether one lived in the proper district. The board in 2018 formally censured him for behavior “not only inappropriate, but reprehensible.”
Wilson sued, and the U.S. Court of Appeals for the 5th Circuit said the lawsuit could continue. Although there were other punishments involved, the Supreme Court took the case to decide the relatively narrow issue of whether a verbal censure amounted to retaliation forbidden by the First Amendment.
“As it comes to us, too, the censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office, and Mr. Wilson does not allege it was defamatory,” Gorsuch wrote. “At least in these circumstances, we do not see how the Board’s censure could have materially deterred an elected official like Mr. Wilson from exercising his own right to speak.”
Gorsuch said that Congress has been censuring members since the 19th century and that “elected bodies in this country issued no fewer than 20 censures in August 2020 alone.”
Gorsuch said that didn’t mean all censures are alike, and that such condemnation sometimes might not be acceptable, depending upon the recipient.
“It may be, for example, that government officials who reprimand or censure students, employees, or licensees may in some circumstances materially impair First Amendment freedoms,” he wrote. Or “when the government interacts with private individuals as sovereign, employer, educator, or licensor, its threat of a censure could raise First Amendment questions.”
But in cases in which the combatants are equal members of an elected board, “argument and counterargument” are the acceptable weapons for disputes, not litigation, Gorsuch wrote.
The case is Houston Community College System v. Wilson.